Charlie Mitchell: The law as a pacifier

OXFORD -- Section 1 of the Mississippi Religious Freedom Restoration Act, signed into law last week, is to calm the masses -- those who believe the gay agenda in America needs to be sent a message.

Section 2 of the act says that in the future all state seals should have "In God We Trust" added. Like Section 1, it is wholly symbolic.

The act is similar to the "Big Gulp" law the Legislature passed last year. That was in reaction to a (failed) measure to limit the size of pop portions in New York City.

"Not here," the 2013 crop of Mississippi lawmakers said in forbidding any city or county to say how much soda can be sold.

"Not here," Mississippi lawmakers said this year in reaction to regulations elsewhere that seem to force recognition of same-sex marriages.

In keeping with tradition, the national media went into overdrive. Tsk-tsk. Mississippi is stuck in olden times.

But when one reads the actual law, well, it's just weird.

For one thing, it says U.S. Supreme Court decisions from 1963 and 1972 will be controlling authority. This is problematic because (1) under the doctrine of separation of powers, courts are supposed to speak for themselves and legislatures are supposed to speak for themselves and (2) the court reverses and modifies its rulings all the time. If the federal cases are overruled, what happens what happens to the state law?

That may all be a bit obscure, so look at the law's mechanics -- how it is to work -- instead.

Section 1 is very short. Three pages.

It doesn't mention same-gender matrimony.

It simply says that no state or local authority -- without a compelling interest -- may "substantially burden" the freedom of religion of a person.

What does that mean? It could mean a lot of things.

It could mean a person -- or a business (corporations are often "persons" in legal matters) -- could refuse any service of any type if the provider believes doing so would violate religious beliefs.

A Christian coach could reject Jewish gymnasts. A Presbyterian pediatrician could pass on Baptist babies.

Of course, situations such as those were not the motivation. It was tales of gay couples pressing discrimination charges against bakers who wouldn't sell them cakes or photographers who wouldn't take their pictures -- that's where it started; that's when lawmakers' phones started ringing.

Now let's look at discrimination.

For one thing, it's as natural as sunshine. Individuals discriminate every day. No law has ever been written -- or ever will be written -- to end it.

That's because the meat of discriminating, as in, "she's a discriminating shopper," is to make a choice. It's actually a compliment to say a person "discriminates" in that context.

In normal conversation, of course, discriminate has come to stand for the toxic variety, for bigotry, for making choices on ill-founded or unfounded reasons.

But when we decide to have Cheerios instead of Frosted Flakes, we discriminate. When we vote for one person we discriminate against others on the ballot. Sometimes there's a good reason; sometimes a bad reason; sometimes no reason.

In the big picture, governments have had success regulating discrimination. The Americans With Disabilities Act has worked by requiring that buildings open the public be retrofitted or designed to accommodate people with physical challenges.

In the contest of mass housing or employment, governments have long banned discrimination based on gender or race or national origin or marital status or religion (of the applicant).

But government has never been able to (or attempted) to dive to the personal level. When a widowed grandmother declines to accept anyone other than another widowed grandmother to share her apartment, that's perfectly legal.

But that's what the new Mississippi law purports to do. Its message is, "Don't worry, if you don't want to do business with gay people, we won't let anybody make you."

Some say that perpetuates, reinforces bigotry.

Some say if protects fundamental family values.

The only real effects, however, are (1) to toss fodder to the self-righteous and (2) to ramp up support of voters who are apprehensive over the rapid changes in the world around them.

Be at peace, bakers and photographers. This much-heralded law doesn't change much of anything.